The Labor Dish recently addressed the rapid rise of remote working arrangements amongst U.S. employees.  Although “OUT OF SIGHT, BUT NOT OUT OF MIND” touched on the many benefits that come from such arrangements, it also detailed various wage and hour concerns unique to employees working from home, and how employers should begin to navigate these issues.  Just getting payroll in order, however, will not solve all the problems facing employers with telecommuting employees.  Things are a bit hairier, so to speak, and from house pets to home invaders, there are various health and safety issues employers must consider.  The following addresses some of these issues, and also the ways in which remote working arrangements can help employers better “weather the storm,” when it comes to health and safety.

Workers’ Compensation

It is common knowledge that employers have a duty to create a safe working environment and may be liable for employee injuries or illnesses that occur “on the clock.”  Employers may not be aware, however, that they also must create safe working environments for employees working remotely, and that such employees may be eligible for workers’ compensation benefits for injuries or illnesses that occur while working away from the office, such as in their own homes.

In order to limit safety issues, and potential liability, employers should consider requiring all employees that work remotely to sign an agreement that:

  • Describes the employee’s specific job duties;
  • Details the employee’s work hours and break periods;
  • Requires the employee to designate an area, such as a home office, as his or her specific working environment;
  • Explains activities prohibited during work hours, including the supervision of any children under 12 years old, or other children or adults needing assistance;
  • Explains that at no time will workers compensation benefits be available to any other third parties that may get injured or become ill in the specified working environment; and
  • Outlines the reporting procedures for any job-related injuries or illnesses, which emphasizes that all reports should be made as soon as possible.

These terms of remote working arrangements, some of which may also be useful in avoiding wage and hour pitfalls, help draw clearer lines between when an injury or illness simply occurs in an employee’s home, and when they arise out of and in the course of employment.

Taking these measures, employers may avoid liability in some unusual circumstances.  For example, in 2011 an Oregon appeals court found an employer liable for the injuries of an employee who tripped over her dog walking to her own garage, where she regularly worked.  The court explained that she was walking to the garage solely to perform a work task, and therefore the injuries arose out of and in the course of her employment.  Sandberg v. JC Penney Co., 260 P.3d 495 (Or. App. Ct.  2011).  Conversely, a Tennessee court did not find an employer liable for the injuries a remote employee sustained during a third party assault, while she was preparing lunch in her home, where she had an employer-approved office.  There, although the injuries occurred during the course of her employment – she was engaged in a permissible break, in a place where her employer reasonably expected her to be, and she was not engaging in prohibited conduct, among other reasons – the court found that the injuries did not arise out of her employment due to the lack of causal connection between her employment and the third party assault.  Wait v. Travelers Indem. Co., 240 S.W.3d 220 (Tenn. 2007).

OSHA

The Occupational Safety and Health Act (“OSHA”), and its corresponding safety and health regulations, also provides that working environments must be safe for employees.  Beyond this, OSHA requires that most employers with more than 10 employees properly record certain work-related injuries and illnesses.  The regulations make clear that this requirement extends to employees who work from home, “if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”  29. C.F.R. § 1904.5(b)(7).  For reference, 29. C.F.R. § 1904.5(b)(7) provides the following examples:

  • Work related injuries:

o    An employee drops a box of work documents and injures his or her foot.
o    An employee’s fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment.

  • Non-work related injuries:

o    An employee working at home is electrocuted because of faulty home wiring.
o    An employee is injured because he or she trips on the family dog while rushing to answer a work phone call.  But see, JC Penney Co., 260 P.3d 495 (finding a remote employee eligible for workers compensation benefits, after she tripped on her dog while performing work-related tasks at her home).

As stated above, to ensure OSHA compliance, and to reduce the risk of potential liability, employers should provide telecommuting employees with clear guidelines regarding workplace injuries and illnesses, and also all applicable reporting procedures.

Benefits: Weathering the Storm

Despite the apparent minefield of health and safety risks employers need to navigate when allowing employees to telecommute, these arrangements can also provide benefits in this arena.  For example, natural disasters – such as Hurricane Sandy in 2012, which, according to official New York City reports, flooded approximately 23,400 businesses in the city –  can be devastating on employers, if an entire workforce is grinded to a halt during recovery efforts.  If employees can telecommute, however, then an employer may be better equipped to “weather the storm,” and keep at least some operations afloat.  Further, something as simple as a contagious stomach bug can be better contained and not threaten to take out entire collaborative teams, if at least some employees work remotely.

Introduction

             The #MeToo movement is a worldwide phenomenon.  Since October 2017, the hashtag has trended in at least 85 countries, and in dozens of languages—for example, #YoTambien in Spanish, #MoiAussi or #BalanceTonPorc in French, #QuellaVoltaChe in Italian, #Ятоже in Russian, גםאנחנו# in Hebrew, and أنا_كمان# in Arabic. 

             As the #MeToo movement gains momentum, global employers must recognize that the likely increase in complaints won’t be limited to the US,[1] given that about two-thirds of countries around the world have laws that prohibit workplace sexual harassment.[2]  This article highlights some of the many anti-sexual harassment laws around the globe, offers “best practice” tips for creating a harassment-free workplace culture outside the US, and examines how to conduct a thorough investigation if a global employer finds itself facing a sexual harassment claim, especially in light of onerous data privacy laws and limited attorney-client privilege outside the US.

  1. First Thing’s First: Make Best Efforts to Avoid a #MeToo Moment

             No employer wants to be the next #MeToo cover story, and so, as the old adage goes, an ounce of prevention is worth a pound of cure.  In this case, preventive medicine includes implementing and following anti-sexual harassment policies — and making sure all employees are aware of them — and providing sexual harassment training to all employees.  While these are good practices generally, such practices may be legally required in some countries.  For example, Belgium, France, India, Japan, the Netherlands, and some provinces in Canada (including Ontario, Saskatchewan, and Manitoba) require employers to implement anti-sexual harassment policies.  And employers must provide broader anti-harassment training to employees in India, South Korea, Taiwan, and some provinces in Canada (including Ontario and British Columbia).

             Employers who fail to comply with these requirements can face serious consequences.  In many countries, victims can sue employers and hold them liable for their employees’ unlawful actions.  The good news is that employers can protect themselves by making sure all employees are aware of prohibitions on sexual harassment — thus reducing the chances of harassment occurring in the first place.  What is more, in the event that an employee does engage in harassment, employers should be able to identify the steps they have taken to educate and protect their workforce, including through the use of anti-harassment policies and training.

  1. In the Event of Harassment Allegations, Investigate All Complaints

             Whether located in the US or abroad, most companies have good intentions when it comes to creating a harassment-free workplace.  But what specifically should companies do when faced with a sexual harassment complaint outside the US?  As in the US, the first step will generally be to promptly investigate the allegations.  In fact, some countries — including Austria, Chile, Costa Rica, India, Japan, and South Africa — expressly require employers to investigate sexual harassment complaints.  Countries such as Chile and India have laws that enumerate specific  minimum requirements for investigations, including the maximum number of days employers can take to complete investigations and make decisions based on their findings.

             Along the way, investigators must navigate numerous pitfalls to uncover the truth behind any harassment allegations while best protecting the company.  These pitfalls are both more numerous and more involved in the context of global investigations, where the relevant employees, allegations, and documents might span several countries and various different laws.  For instance, some countries (e.g., India and France) require companies to consult with certain employee representative groups.  In India, companies must have internal complaints committees to investigate sexual harassment complaints, and in France, companies must consult with a health and safety committee with respect to harassment investigations.  In practice, this means investigations can drag on for weeks before the employer can finally resolve the claims.

A.             Determine the Scope of Attorney-Client Privilege

             Attorney-client privilege is a critical component of many US-based investigations. However, when conducting a global investigation, companies should determine whether and how the attorney-client privilege applies to communications made during the investigation.  Generally, common law countries such as the UK, Australia, Canada, New Zealand, Hong Kong, India, and Singapore recognize the privilege, though they may interpret it and apply it differently than US courts do.  In India, for instance, the privilege exists for outside counsel but not for in-house counsel.

             On the other hand, most civil law countries across the EU, Middle East, and Asia Pacific do not have an attorney-client privilege equivalent, although they do generally require attorneys to maintain the confidentiality of client communications.  For more information on attorney-client privilege around the globe, visit the DLA Piper Privilege Handbook, available here.

             Often in global investigations, documents or information are sent from one country to another, whether because the actors are spread across various countries (e.g., where a regional manager is accused of harassing employees in various countries in his/her territory) or simply for ease of review.  However, companies must take into account that documents protected in one country may be subject to production in another country if they are sent there.  Let’s say counsel is conducting an investigation abroad, in a country that does not recognize attorney-client privilege.  Should he or she still give an Upjohn-like warning to employees being interviewed?  If there’s any chance that the matter may be litigated in the US, then the answer is yes, in order to preserve the privilege here.    

B.             Consider the Impact of Data Privacy Laws outside the US

             When conducting internal investigations, companies and their counsel must also consider data privacy issues.  More than 100 countries around the world have data protection laws that give employees certain rights with respect to their personal data, including the right to notice regarding the types of personal information that a company might obtain, how it will use that data, and to whom the data will be disclosed; the right to consent or refuse consent to the collection, use, and sharing of that data; and the right to correct erroneous data.  Data protection laws also set out requirements for and limits to collecting personal information and sharing with third parties and outside of the country.  These rules apply when conducting investigations and sharing the results of the investigations.

             The most talked about data protection law right now is the EU’s General Data Protection Regulation (GDPR), which took effect on May 25, 2018.  GDPR requires employers to have a legal basis or good reason to collect, use, or share personal information.  Potential legal bases include:

  • the processing is necessary for the company to comply with a EU legal obligation (a US statute or regulation would generally not be sufficient);
  • the processing is necessary for the purposes of legitimate interests of the company or of a third party to whom the data are disclosed, except where the individual’s interest in his or her fundamental rights and freedoms override those interests;
  • the processing is necessary to perform a contract to which the individual is party (e.g., the employment contract); or
  • the individual has unambiguously consented to the processing (though beware that express consent can be freely revoked at any time under GDPR).

             Further, the GDPR imposes restrictions on sharing personal information outside the European Economic Area (EEA).  Importantly, the European Commission has determined that the US does not provide adequate protection for personal information, so companies will be limited in their ability to transfer personal data into the US, which can present logistical nightmares for global companies headquartered in the US.  As such, companies with workforces in the EU should take the following steps as soon as possible and in any event before obtaining, using, or transferring personal information:

  • update privacy notices, which must include, among other things: a description of the categories of personal data that the company will process, the purposes for which the personal data will be processed, information about third-party transfers, legal grounds for the transfer, whether there will be a transfer to countries outside the EEA that do not provide adequate protection (e.g., US), and that the employee has the right to withdraw consent and to file a complaint with the supervisory authority;
  • update privacy policies and procedures;
  • create or update intra-group data transfer agreements;
  • provide employees with data privacy training; and
  • if non-EEA countries are in scope, implement additional safeguards (e.g., model contract clauses).

             Of course data privacy considerations are not limited to GDPR and the EU, and companies should be aware of data privacy rules in any jurisdiction where they have employees.

C.             Consider Public Relations Strategy

             Finally, while not a strict legal requirement, companies also should have a plan of action for when information about investigations abroad is disclosed so they are able to respond quickly and minimize the effects of the negative press.  We are living in a world where information travels rapidly across the world via social media and other online platforms.  For employers, this means that stories about sexual misconduct abroad can easily make it into the morning newsfeed of consumers at home and create a public backlash.  A recent Harvard Business School study found that when people learn about sexual harassment claims being made in an organization, they view the organization as having a cultural problem and being less equitable than organizations engaged in other unlawful acts, including financial misconduct.  The same study found that addressing the allegations in a timely, informative manner that shows consideration for the victim can minimize public backlash.  As such, companies should not neglect their public response to harassment allegations.

Conclusion

             As the #MeToo movement continues to make waves worldwide, the number of workplace sexual harassment complaints is likely to increase in the short term — not just in the US, but globally.  But as companies take steps to  prevent sexual harassment and react appropriately when it does occur, there is real hope that workplace attitudes and cultures will ultimately shift — and the number of complaints may eventually decrease.  Until that time, here are some steps companies can take to limit their liability or legal exposure with respect to harassment claims:

  • understand and comply with local laws governing sexual harassment;
  • update sexual harassment policy to ensure that it clearly prohibits sexual harassment, provides examples of sexual harassment, establishes the scope of the policy and to whom it applies, and contains a clear procedure for reporting incidents that mitigates retaliation against victims of or witnesses to unlawful harassment;
  • provide periodic training to all employees on the company’s sexual harassment policy and create an environment where employees feel comfortable raising concerns;
  • have a protocol in place for investigations so concerns can be addressed in a timely manner. If needed, take remedial actions, including moving the affected employee’s workspace or changing his/her work schedule (if required or if the employee requests such accommodations) to prevent further inappropriate actions by the accused. Also, provide training to professionals conducting the investigation to ensure that investigations are fair and comply with relevant legal standards; and
  • keep victims informed about the timeline of investigations and any remedial measures the company has taken, and advise them to report any ongoing inappropriate conduct. When the investigations end and remedial measures are no longer in place, the company should follow up with all complainants to ensure they are no longer experiencing ongoing harassment and feel safe in the workplace.

             Employers and outside counsel can face many pitfalls when conducting any internal investigation, especially in the case of a global investigation.  However, with preparation, good judgment, and knowledge of local laws, global investigations can be a useful and (relatively) safe tool to make lawful and effective employment decisions following a sexual harassment complaint.

[1] The 50% increase in sexual harassment lawsuits filed by the Equal Employment Opportunity Commission in the United States, along with $23 million in increased recovery since October 2017, provides a cautionary tale for anyone who believes the #metoo movement is slowing down.  https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm

[2] https://ph.ucla.edu/sexual-harassment-explicitly-prohibited-workplace

Wage and Hour Issues Involving Remote Employees

A 2017 Gallup survey found that nearly half of U.S. employees (43%) spend at least a portion of their working time away from their employer’s offices.  This represents a 4% increase since 2012 and a whopping 34% increase from 1995 and the trend appears to only be gaining momentum.  Work-from-home opportunities and flexible scheduling options not only influence a position’s attractiveness to applicants and employees, but also may benefit companies by, among other things, improving employee retention and morale and widening the pool of available employee talent.  There are, however, important potential wage and hour pitfalls that employers should consider when permitting employees to telecommute or work remotely on a full-time, part-time, or occasional basis.

Policies

As an initial matter, any arrangement which permits some or all employees to work remotely should be addressed in the company’s employee handbook or personnel policies.  At a minimum, the handbook should include clear timekeeping policies for non-exempt employees and address guidelines for tracking hours worked, prohibitions on off-the-clock work, and requiring permission before working overtime.

Employers that plan to offer more extensive telecommuting programs should consider implementing policies to address:

  • Who is eligible to telecommute, including, for example, procedures for requesting approval to telecommute and the conditions for telecommuting;
  • Employee responsibilities while telecommuting, such as accessibility during business hours, communication expectations with colleagues and supervisors, secure access requirements and proper protection of company proprietary information while working remotely, and conditions for using company-owned equipment; and
  • Employer responsibilities, such as the availability and extent of technical support for remote employees and reimbursement of any telecommuting expenses.

Payroll

Employers that have remote workers across multiple states must be sure to comply with the payroll laws in each such jurisdiction–not just the laws in which the company’s home office is located.  This requires, at a minimum, knowing the following:

  • The applicable minimum wage;
  • Whether the state exemption overtime calculation laws differ from the federal Fair Labor Standards Act (FLSA);
  • Payday frequency requirements;
  • Requirements as to what information must appear on paystubs, such as paid sick leave accruals; and
  • Laws addressing payment of final wages and payout of accrued, unused vacation.

Note that there can be payroll tax implications when an employee works in a state other than the state in which the company maintains a physical presence.  Generally, under the “physical presence rule,” employees pay taxes in the state in which they render services; however, a minority of states do not follow this rule so employers are advised to contact a tax expert to ensure its compliance with each jurisdiction’s tax laws.

Employee Classification

Employers are sometimes tempted to classify individuals who work remotely as independent contractors or consultants because they assume that they don’t have the requisite physical control for the offsite individual to be an employee; however, that is only one factor in the analysis of whether an individual should be classified as an employee or independent contractor.  Employers need to look beyond the physical location of the individual and analyze how much overall control the employer has over the individual.  This includes, for example, looking at the level of instruction and direction over the work; the degree of integration into the company’s business; the continuity of the relationship; payment of expenses; provision of materials and tools; realization for profit or loss; and exclusivity.  See e.g. IRS 20-Factor Test.  Employers can be subject to significant fines and penalties for misclassifying employees as independent contractors.

Overtime Laws

Employers with telecommuting employees should be sure to avoid potential pitfalls related to compliance with state and local wage and hour laws.  For example, certain states, including California, Pennsylvania, and Oregon, have different criteria for determining whether a position classifies as overtime exempt.  Where applicable state law differs from the FLSA, the stricter state exemption standard must be followed.

Once it is determined that a remote or telecommuting employee is non-exempt under applicable law, the employer must then ensure that it is complying with laws addressing meal and rest breaks and payment of overtime.  For example, a number of states, including Nevada, Alaska, Colorado, and California, require that non-exempt employees be paid overtime on a daily, not just weekly, basis.  Additionally, California has also recently rejected the FLSA’s de minimis doctrine, meaning that employers of California employees cannot generally disregard “insubstantial or insignificant periods of time beyond the scheduled working hours” when recording time worked.  Troester v. Starbucks Corp., 5 Cal.5th 829, 421 P.3d 1114 (Cal. S. Ct. 2018).

The FLSA is clear that non-exempt employees must be compensated for all hours worked, including all work performed at a remote location (see 29 C.F.R. § 785.12); however, time tracking for remote, non-exempt employees can be a more difficult task given that the employee cannot be physically observed in the workplace.  Employers with a sizeable number of non-exempt, remote employees may wish to consider implementing electronic systems for properly tracking hours worked.  Not only does the law require proper tracking, but such systems can be invaluable should the company ever find itself defending against an employee wage claim.  Such a system could include requiring remote workers to log in and out of the company’s computer system when working remotely; engaging task-monitoring devices to monitor URLs and apps accessed; using software that tracks keystrokes, takes randomized screenshots of the remote employee’s computer screen, or otherwise monitors productivity.  Of course, any such monitoring should be appropriately described in the company’s computer and electronic communications policies.  Regardless of whether a company uses a time tracking and/or productivity monitoring system, if it knows or has reason to know that a non-exempt employee is working beyond his or her shift, notwithstanding a policy prohibition from doing so, it must count the additional hours towards time worked and compensate the employee accordingly.  29 C.F.R. 785.12.

In recent years, a number of highly visible companies in jurisdictions that prohibit “use or lose” vacation policies have adopted unlimited paid time off (“PTO”) programs, garnering ample media buzz.  Under such policies, employees can take off as much time as they choose (within reason) as long as they get their job done.  The focus is on producing results, not just logging hours.

Buzz aside, only about 1-2% of employers currently offer such policies – primarily in California due to its generous laws regarding vacation accrual and payout—and, because they are so new, courts and legislatures have not yet opined on them.  The following lays out the legal and practical issues for employers to consider when deciding whether to transition to an unlimited policy.

Benefits of an Unlimited PTO Policy 

  • Cost Savings:
    • There is an argument under current wage and hour laws that employers can avoid payout of accrued vacation upon termination, where applicable, because PTO is “unlimited” and does not “accrue” or “vest.” See e.g., Cal. Lab. Code § 227.3 (where “an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages”) (emphasis added). That being said, there is currently a dearth of case law on this issue and we don’t know whether courts will agree or if legislatures will eliminate this perceived legislative loophole.   While there has not been case law regarding payout of “unlimited” vacation at termination, California has acknowledged the existence of “unlimited” plans as it relates to paid sick leave which indicates an understanding of this concept as something distinct from a traditional accrued vacation plan.
    • Unused, accrued PTO that rolls over each year and is paid out upon separation can be a significant expense on a company’s balance sheet. Indeed, one report estimates that American companies have $224 billion in liabilities on their balance sheets from unused vacation time. That liability can be decreased or eliminated with an unlimited PTO policy.
    • Some studies have shown that unlimited PTO policies may indirectly reduce the cost for other benefits (think health insurance, disability insurance and employee assistance programs) because employees can more easily take time for routine and preventative care.
  • Talent Acquisition Tool: The flexibility that these policies offer may make a company more attractive to top talent, especially to millennials.
  • Reduces Administrative Headaches: In many cases, human resources and payroll staff are relieved of monitoring time off and, in jurisdictions and companies with a “use or lose” policy, the end of the year rush to take unused PTO goes away too.
  • Employee Loyalty: If managed correctly, unlimited PTO may build higher morale and a culture of employee ownership because the policy conveys that the company trusts its employees to manage their time in a way that serves their personal needs while also meeting their obligations at work.

Drawbacks of an Unlimited PTO Policy

  • Not a Good Fit for Every Company Culture: These policies are better suited for results-driven companies that already provide employees with a certain amount of autonomy and flexibility. They are unlikely to be effective at companies where employees must be physically present at the worksite, like retail establishments, restaurants or manufacturing plants. Also, these policies may cause morale problems for more senior employees who may be upset that a junior employee now gets the same vacation time as someone who has been a loyal employee for many years.
  • Too Cumbersome for Non-Exempt Employees: These policies likely won’t make sense if the workforce is heavily comprised of employees paid on an hourly basis who are not exempt from overtime and minimum wage requirements because employers must still track non-exempt employees’ hours worked to ensure compliance with overtime, minimum wage, and meal and rest break laws. Additionally, non-exempt workers are paid based on time worked, not their completion of their work assignments, so the likelihood of abuse is much greater. Companies that otherwise wish to implement an unlimited PTO policy may do so for their exempt employees, while keeping a traditional vacation policy for non-exempt employees.
  • Requires Active Management of Employee Performance: Supervisors must proactively manage employee performance and create and communicate metrics to assess contribution and productivity without simply relying on hours logged at the office. Managers won’t be able to discipline someone for not being in the office, but rather for failing to complete their work, which requires more oversight. And remember, there will be some employees who will abuse this privilege by, for example, creating consistent long weekends through the summer.
  • May Dissuade Employees from Taking Time Off: If employees do not have clear expectations of how much time off is acceptable or if job security is low or employee competition is high, employees may fear taking time off absent a fixed entitlement to do so. This can defeat one of the reasons for providing unlimited paid time off in the first place.
  • Uncharted Territory: As these policies gain popularity, legal issues will arise. Not all companies will have the appetite to adopt a policy that has not yet been vetted by courts and legislatures.

Transitioning to an Unlimited PTO Policy

When making the transition to an unlimited PTO policies, employers should remember:

  • “Unlimited” Should Not Mean “Unmanaged”: It’s imperative to have a clear, written policy addressing: (i) eligibility; (ii) how to request time off; (iii) the rules and guidelines around the benefit (including that sufficient advanced notice is required for planned time off); (iv) that because vacation does not accrue, there will be no payout of PTO upon separation; and (v) that employees must meet their goals and maintain satisfactory job performance to remain eligible for the benefit. Supervisors should discuss with their teams how PTO will be managed so that there is no interruption of service for clients and to minimize headaches for other team members. Discipline under the new policy will be challenging initially and Human Resources should be very involved in these discussions to ensure consistency throughout the organization.
  • Must Comply with Other Legal Obligations: Companies must still comply with their FMLA, ADA, USERRA, paid sick leave, and similar obligations, if applicable. To minimize complications related to leave administration, employers should make clear how these policies interact with an unlimited PTO plan, in compliance with applicable local law. The PTO policy should establish clear limits on how PTO is used, and how long an employee can use it for in a single block of time (i.e., absences of more than 15 consecutive days are not covered by this policy). Remember that leave statutes and ordinances have anti-retaliation policies, so companies must be consistent in how the PTO use limits are applied.
  • Plan for the Transition: Companies transitioning away from a traditional PTO plan should give staff ample time to use their accrued days or cash them out in advance of the unlimited policy going into effect and have a clear communication plan in place. There should be clear talking points about why the change has been made and how the company will administer it. Supervisors should be armed with information and know when to pass questions onto Human Resources. This is key, as employees will always come to supervisors first, and without a communication plan in place before the transition, there is likely to be inconsistent (and otherwise problematic) responses without valuable input from Human Resources. And remember that everything is local here, and companies must balance the desire for uniformity with local rules regarding use and payout of accrued paid time off, medical leaves of absence, reasonable accommodations and paid sick leave.

For years, Washington’s employment laws were to California’s like Macklemore was to Dr. Dre – yes, they had a west coast flavor, but they weren’t as scary as California[1].  Washington laws provided for meal and rest breaks, but there wasn’t much class action litigation.  They allowed non-competes, and averaging of wages to determine if someone was paid minimum wage.  But Washington is now coming out as Snoop Dogg and fully embracing its West-Side street cred, just like the original on Dre’s The Chronic.

First, in 2015, the Washington Supreme Court in Demetrio v. Sakuma Bros., 183 Wash.2d 649 (2015),held that agricultural piece-rate workers must be separately paid for rest breaks, even if they are paid completely for their time worked.  This certainly had the flavor of California’s own decision in Gonzalez v. Downtown LA Motors, 215 Cal.App.4th 36 (2013), but was a good example of Washington paying homage to the godfathers like Cube and Jerry Brown down south that led the way, without overshadowing its mentor.

Then in 2017, Washington decided to make its own mark, announcing itself as a full member of the West-Side’s Death Row of employment laws by deciding in Brady v. AutoZone Stores, Inc., 188 Wash.2d 576,  that Washington employers have a “mandatory obligation” to provide meal breaks, and ensure those meal breaks complied with the law. This went beyond what California’s Supreme Court had held in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012),  where the employer’s obligation is to “provide a reasonable opportunity to take an uninterrupted 30-minute break.”  Needless to say, there was rejoicing among the Plaintiffs’ bar at this decision, and class action litigation exponentially increased in Washington as a result.

Now fast forward to 2018, when Washington has followed up its cameo appearance with its own Doggystyle moment, holding that piece-rate agricultural workers must be compensated separately for “non-picking” tasks in Carranza v. Dovex Fruit Company, 416 P.3d 1205 (2018).  This decision is limited to agricultural workers, but aggressive plaintiffs lawyers have filed multiple class actions within days of this ruling and further litigation regarding piece-rate compensation will surely occur.

To understand Dovex, you have to look at the lyrics of the parties in this case.  On one side of the wage-and-hour battle, the Plaintiffs argued that work that did not fall within the piece rate must be paid out at a separate hourly rate.  The employer argued that what mattered is the total compensation paid to the employee for the total hours worked.

The Supreme Court broke this down to hold that, essentially, when a picker was not picking, he or she was not being paid . This varies from the federal interpretation of the FLSA, endorsed by (among others) the FLSA, which holds that minimum wage compliance is determined over the entire work week. Dovex does follow California law, however, which requires that employees be paid at least the minimum wage for “each and every separate hour worked,” and if an employee was paid via piece rate, he or she was not being paid for all the tasks they performed over the course of the day .  For now, Washington has regulations, WAC 296-126-021, that specifically allow for (non-agricultural) piece-rate workers’ weekly wages to be averaged across all hours worked in a workweek to determine minimum wage compliance.  California just seems to be too old-school to have a regulation that makes this much sense.

So what does this mean for Washington employers, and others who are operating on the West Coast? It is fair to say that there will likely be more class action litigation, and the cost of doing business may increase, just as it has in California.  Employers can proactively assess their policies in light of this trend, looking at the cases currently pending before the Washington Supreme Court to identify possible concerns, and address those before the rules are retroactively changed.  And employers can look to California to better understand where Washington is going, though knowing that the young ones are always trying to outdo the OGs.

_____________________________________
1. I’ll let you determine where Oregon falls within this analysis. My vote is for the Black Eyed Peas.

Do you remember the “Friends” episode where Monica, a chef, brings home dinner for all of her friends – five steaks and an eggplant for Phoebe – which she received from a new meat supplier at work? Her boss calls her the next day to say that the food was a kickback and terminates her immediately for violating corporate policy. (Don’t worry, I’d forgotten about the episode too until I started writing this).

Would it have taken the scriptwriters a long time to rewrite the scenario and figure out how to terminate Monica in countries outside the US? Sadly, the answer is yes. Employers face many potential pitfalls when terminating non-US employees for cause. Here are some of the top issues that employers encounter that are surprising from a US law, at-will employment perspective.

As Monica once said: “Welcome to the real world. … You’re gonna love it!”

1.            Ground of Terminations

a)            In many countries having grounds for an immediate termination for cause is a very hard standard to meet.

If Monica had received some borscht as a kickback in a Moscow restaurant, for instance, the restaurant might not be able to use the for-cause termination route. In Russia termination for cause for a single act of gross misconduct is restricted to an exhaustive list of grounds including the employee coming to work intoxicated, embezzlement, or willful destruction or damage to property as determined by a court ruling (meaning that the company would have to sue the employee in court and obtain a judgment against the employee). Unless one of the enumerated causes is given, the employer can dismiss an employee only if there is repeated failure by the employee to perform his or her employment duties without good cause, but this requires prior discipline against the employee for the violation. Thus, under this prong, even after Monica got caught taking the kickback in violation of the corporate policy, her boss could not terminate her if it was her first misconduct.

In practice, employers in Russia often prefer to mutually terminate an employment relationship to avoid contentious proceedings and to minimize disruption, even where there are serious concerns with respect to an employee’s behavior (though in fairness, this does sound like California).

“I know!” [with Monica’s excited tone]

b)            The termination grounds often need to be set forth in company policies properly rolled out.

If Monica was working in China and violated a global company policy that was not rolled out through a “democratic process” (basically, a process of obtaining the opinion of the employees’ and/or their representatives) the restaurant would not be able to use the “for cause” route for a termination based on violation of the company policy.

Instead, the restaurant would probably need to convince Monica to resign or accept mutual separation.

2.            Speed

In some countries there is a very strict timeline for the termination process.

What if Monica worked in a beer garden in Germany?  The German beer garden would need to serve Monica with a termination letter within two weeks after learning the relevant facts constituting the severe breach of contract. The two week period is triggered once the employer has collected sufficient facts to come to an educated decision on whether or not the relationship with the employee is irrevocably disrupted and a dismissal is the only option available. If the employer misses this deadline, the dismissal without notice for cause is void but may be construed as a regular termination with notice from 4 weeks up to 7 months (after 20 years of employment), which, though, in turn can be challenged.

3.            Investigation

We do not have enough background to know how Monica’s boss found out about her alleged misconduct (clearly they did not have an employment lawyer in the writing room). But we know for sure that Monica did not have a chance to explain herself during the investigation.

In many non-US countries employers must investigate the allegations of misconduct in accordance with specific procedures or at least follow such procedures as they want to impose discipline.

In a Bollywood script Monica should have received a charge sheet that should clearly set out the alleged misconduct, specific sections of the company policy violated by the particular misconduct, and the time within which the employee is required to provide a response to the charge sheet. In India, Monica would have three to four working days from the date of receipt of the charge sheet to assess and respond to the charges. The next step is usually to appoint an enquiry officer or constitute an enquiry committee and send a notice to the employee setting out the date and time of the enquiry/disciplinary hearing. During the hearing all evidence should be produced and the employee should be given an opportunity to provide explanations and to cross-examine the witnesses. After the hearing, the enquiry officer should submit a report with the findings to the disciplinary authority in the company (normally management). The whole process would probably not fit into one 25-minute episode (although the usual workaround in India is to shame Monica sufficiently for her to resign).

4.            Formalities

In many non-US countries employers must comply with specific formalities and jump through many hoops in order to terminate an employee for cause.

a)            In South Korea termination notice in an e-mail is not sufficient. The termination notice must be in writing wet-ink signed by duly authorized officer of the employing entity and should specify the reasons for termination. Unfortunately, receiving a letter several days later is not nearly dramatic enough for the US attention span, but that still pales in comparison to what is required in Belgium, where the termination notice would have to be delivered by registered mail, issued by the Belgium post, and of course in the “right” language based on Belgium language legislation (though sadly a bad British accent is not a requirement).

b)            In some countries companies need to comply with several follow up steps after the termination:

  • In Japan the employer should, inter alia, notify local authorities that the employee lost a qualification as insured person.
  • In Hong Kong the employer should, inter alia, notify Mandatory Provident Fund trustee and the Inland Revenue Department of Hong Kong of the employee’s termination.

And as we all know, nothing spells comedy gold like notifying the government’s revenue department, so all things considered it’s probably a good thing Friends was based in New York.

Pay equity is popular. Shareholder resolutions, often promoted by socially conscious investors, have challenged businesses to report their pay gap publicly.   Plus, 69% of Fortune 1000 companies have voluntarily launched pay equity studies in the last two years.  Push for pay transparency grows stronger.

That is laudable but the real problem is how to eradicate gender gaps that are then identified. 

Issues of discrimination are not issues of plumbing where it is sufficient to identify the leak and to spend the money to make the repair. Rather, fixes pose the risk of reverse discrimination. Ricci v. DeStefano, 557 U.S. 557 (2009) – where the Supreme Court found New Haven guilty of discrimination against whites in attempting to remedy discrimination against blacks – stands as a warning beacon.

But, is reverse discrimination a genuine risk in remediating pay equity?

Although infrequent, challenges on reverse discrimination grounds have been brought by male and nonminority employees when women only received pay adjustments. Rudebusch v. Hughes, 313 F.3d 506, 523-24 (9th Cir. 2002) (permitting Title VII claims of white, male professors challenging pay equity adjustments for female and minority professors, resulting in a jury verdict for the plaintiffs); Maitland v. Univ. of Minn., 155 F.3d 1013, 1018 (8th Cir. 1998) (same, resulting in settlement); Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 677 (4th Cir. 1996) (en banc) (same, resulting in settlement).

Employers must be able to show a valid reason for any pay increase in response to a wage gap. The explanation that this is affirmative action worked once: Ende v. Board of Regents of Regency Universities, 757 F.2d 176 (7th Cir, 1985).  But, in a post-Ricci environment, it is a frail reed (as the contrary holdings even in the pre-Ricci cases cited above illustrate).  There is no safe harbor for such quick fixes.

Yet, there are alternatives to quick fixes to consider either in isolation or collectively:

  1. Price the job, not the person. Employers can research to determine the fair market value of the position, which can be moved up or down based on objective criteria that would remove any unconscious bias in setting a male’s versus a female’s salary. Why Banning Questions About Salary History May Not Improve Pay Equity.
  2. Make pay transparent to the employees. Transparency in pay may make employees feel more comfortable about where they stand compared to their similarly situated colleagues. It may also remove the need for salary negotiations, which research has shown heavily favors men over women. 5 Ways to Fix the Gender Pay Gap.
  3. Ban salary negotiation. Studies posit that salary negotiation may play a prominent role in gender-based pay-disparity. Two Solutions For The Gender Pay Gap That Can Be Implemented Today.
  4. Stop asking for salary history. Some states now have laws prohibiting asking a candidate about salary history because that practice replicates gender inequity in the pay market. Implementing that ban nationally may not only simplify hiring practices but also reduce the risk of perpetuating disparities baked into market prices. ‘What’s your salary?’ becomes a no-no in job interviews.  In addition, the Ninth Circuit has just ruled that prior salary can’t justify a gender wage gap. In Rizo v. Fresno County Office of Education, 2018 WL 1702982 (9th Cir. April 9, 2018), the Court found that an employee’s prior salary – either alone or in combination with other factors – cannot justify a pay gap between men and women. As the Court said, “Salaries speak louder than words,” and to allow salary history to be used to justify a pay gap would “perpetuate rather than eliminate the pervasive discrimination” that the Equal Pay Act was aimed to eliminate.
  5. Fix the gap in experience. Women (far more often than men) drop out of the workforce due to family responsibilities so that a 42 year old woman is competing with less work experience than her 42 year old twin brother. Some employers have found that increasing paid maternity reduced the rate at which new mothers quit by 50%. When Google increased paid maternity leave, the rate at which new mothers quit dropped 50%.

Are you up for the challenge of dissecting the latest trends and developments in international employment law? Take the quiz here (Survey Monkey Quiz), or amaze your friends and neighbors with the crib sheet below. 

I.     In the midst of Brexit uncertainties, UK employers should avoid recruiting European nationals.[1] 

  •  True
  • *False*

Employers there must still ensure that employment decisions are not discriminatory on the ground of (among other things) nationality. So, employers in the UK should not make recruitment decisions based on nationality and should maintain but communicate equality and diversity policies to ensure that decision-makers understand their responsibilities not to discriminate or harass on the basis of nationality.

Further, an agreement in principle was reached between the UK and the EU in December 2017 regarding the future rights of EU citizens currently living lawfully in the UK. These individuals will be able to stay in the UK and enjoy broadly the same rights and benefits as they do now. This agreement applies equally to UK citizens currently living in the EU. Although this is only an agreement in principle, EU citizens do not need to take any steps at this stage to establish immigration status. The key date for establishing rights will be 29 March 2019. Details of the immigration rules for EU citizens who arrive after 29 March 2019 are yet to be agreed.

II.   Which of the following provisions form part of the reforms to the French Labor Code by the Macron Law?[2]

A.  strengthening the primacy of company-level agreements over industry-wide agreements
B.  creating a single staff representative entity in all companies, regardless of their size
C.  capping unfair dismissal compensation based on a mandatory damages scale

  •   A and B
  •   A and C
  •   B and C
  • *All of the above*

Significant reforms have been made to France’s labor law to make it more employer-friendly.

Reforms include caps on damages that can be awarded for unfair dismissal as well as modifications to the calculation methodology of statutory dismissal indemnities. When an employee’s length of service is less than 12 months, the average monthly salary over the complete period preceding dismissal is now taken into account, and in assessing length of service for incomplete years, the statutory dismissal indemnity must be calculated proportionally to the number of complete months.

Other changes have tackled (i) collective bargaining pertaining namely to the adaptation of working time, pay and workplace mobility and (ii) labor relations with the creation of a merged/unified mandatory body in companies with at least 11 employees to exercise the powers currently reserved for union representatives.

III.  In an attempt to further globalize the labor market in the Kingdom of Saudi Arabia, recent reforms to its Nitaqat program have allowed companies with 10 or more employees to employ from now on as many foreign workers as needed.[3] 

  •  True
  • *False*

The Nitaqat program (a Saudi-ization scheme) was amended in September 2017 to increase the ratio of Saudi nationals versus expats working in the Kingdom of Saudi Arabia.

Previously, the Nitaqat criteria only applied to companies with ten or more employees; companies with fewer than ten employees were generally exempt from the program but had to employ at least one Saudi national. This has been expanded and now applies to companies with six or more employees.

Additionally, companies will need to hire more Saudi employees to qualify for a Block Visa: a higher tier (“high green” or “platinum” rating) is now required. To transfer an employee’s sponsorship, a company must also have at least a “green” tier rating. Those with a “lower-green” rating may now only transfer with certain restrictions. 

This will impact recruitment, as employers must now hire more Saudi nationals in order to get a higher tier status to be eligible to employ foreign workers and benefit from the ability to transfer sponsorship.

P.S.: the United Arab Emirates’ Ministry of Human Resources and Emiratisation (MOHRE) has also launched its national “Tawteen” Program at the end of 2016, aiming to increase the employment of UAE nationals in the private sector there too.

IV. Pursuant to the UK Equality Act 2010 (Gender Pay Gap Information) Regulations 2017[4], where are employers required to publish their gender pay gaps by April 2018? [5]

A.  on the employer’s own website
B.  on the Government’s specially designed website
C.  in two local newspapers
D.  in the official gazette

  • *A and B*
  •   A and C
  •   C
  •   All of the above

Gender equality has been in the spotlight internationally.

Numerous countries are striving to reduce gender pay gaps with strategies aimed at protecting workers from discrimination and increasing transparency. For example, in the UK, employers of 250 or more employees must now publish prescribed information relating to gender pay gaps on both their own websites and on the Government’s specially designated website.

Pay data is to be assessed as at 5 April 2017 and reported by 4 April 2018 latest.

P.S.: Other countries with new laws on gender pay reporting are Sweden and Germany. In Sweden, a number of changes were implemented: e.g., employers are now required to conduct salary surveys annually instead of every 3 years. In Germany, the Act on Pay Transparency now grants employees certain rights with regard to access to pay data.

V.   Reforms to Brazil’s labor law came into force on November 11th, 2017. Which of the following provisions was part of the introduced changes?[6]

A.  The limitation in labor litigation of moral damages to a multiple of social security entitlements
B.  Bonuses on a recurrent basis and advance payments (“abonos“) are no longer deemed to form part of salary
C.  Unions no longer have to negotiate working shifts of 12 hours per work per 36 hours of rest and the company can instead negotiate with the employee or his/her union to implement these shifts
D.  For equal pay to be claimed, the activities between the compared employees must not only be similar and performed within the same business site, but also with a difference of not more than 2 years in the same position, and not more than 4 years between lengths of service

  •   A and B
  •   B and C
  •   A, C and D
  • *All of the above*

The reforms to Brazil’s labor law came into force on November 11th, 2017. On November 14th, President Temer introduced a provisional measure proposing a few, modest changes to those reforms. The ball is now in the hands of the House of Representatives.

VI.  In Barbulescu v Romania, the European Court of Human Rights has ruled that an employer was not permitted to terminate an employee for cause for sending (prohibited) private messages on a work system.[7]

  • *True*
  •   False

The Grand Chamber of the European Court of Human Rights overturned the Lower Chamber’s judgment in Barbulescu v Romania. It held that this dismissal was in breach of the employee’s right (under Article 8 of the Convention on Human Rights ) of respect for his private life. Here, his employer violated that right because of its monitoring of his Yahoo! Messenger communications (where it discovered that he had used the internet at work for personal purposes).

Employers in EU countries need to take care if they want to restrict personal use of the internet and other communications at work. For example, a company policy must make clear what is or is not permitted and must inform employees of any monitoring which will take place in line with local laws. Restrictions and monitoring should also be proportionate as the Grand Chamber noted that an employer’s instructions cannot entirely forbid employees having a private social life in the workplace.

P.S.: It is also worth noting that the General Data Protection Regulation (“GDPR”) comes into force in May 2018 and will impact processing of data, including employee data, of EU based employees.[8]

VII. In which of the following countries in Asia was the so called “apology legislation” passed in July 2017?[9]

A.  Japan
B.  Philippines
C.  Hong Kong
D.  Vietnam

  •   A
  •   B
  • *C*
  •   D

The aim of the new legislation in Hong Kong is to clarify the legal consequences of making an apology as well as to encourage parties to make apologies in disputes. Under this legislation, an apology does not constitute an express or implied admission of liability in connection with the matter and should not be taken into account when determining fault or liability.

 VIII.  In which European country do employees have a statutory “right to disconnect” from IT devices?[10]

A.  France
B.  Switzerland
C.  Germany
D.  Sweden

  • *A*
  •   B
  •   C
  •   D

Contrarily to opinions in the popular press, it is an overstatement to say that French employees cannot read emails after 6pm. Rather, France’s new “El Khomri” law merely includes a requirement for employers to discuss the right to disconnect from IT devices with employee representatives as part of the company’s mandatory annual negotiations on professional equality and work life balance. Employers must also review their means of ensuring reasonable use of IT devices.

IX. In which Asian country does the law require the provision of a room dedicated to child care (i.e. a “crèche”) at workplaces with 50 or more employees?[11]

A.  India
B.  Pakistan
C.  China
D.  Bangladesh

  • *A*
  •   B
  •   C
  •   D

The Indian Maternity Benefit (Amendment) Act of 2017 requires establishments with 50 employees or more to provide a “crèche” facility at or near the workplace. Such facilities are not only expected to provide trained caretakers for the employees’ children, but also to ensure adequate accommodation, light, ventilation, and sanitary conditions. Mothers are allowed to visit those rooms four times a day including during her interval for rest.

X.  Which Canadian province has recently amended its legislation to require employers to take steps to protect workers from workplace sexual harassment (and workplace harassment, generally)?[12]

A.  Ontario
B. Quebec
C.  Manitoba
D.  Nova Scotia

  • *A*
  •   B
  •   C
  •   D

Ontario has passed important amendments to its Occupational Health and Safety Act, including (i) an expansion of the obligation to have a workplace harassment policy, (ii) a duty to ensure an investigation is conducted into complaints of any workplace harassment/ workplace, (iii) a duty to ensure that the complainant and the respondent are informed of the investigation results, (iv) an obligation to consult the Joint Health and Safety Committee on the workplace harassment policy; and (v) an expansion of the role of Occupational Health and Safety inspectors by granting inspectors the power to order investigations and corresponding reports, at the employer’s expense, into workplace harassment complaints.  

[1] http://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/uk-brexit-impact-on-european-nationals-in-your-workforce

[2] https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/france-new-macron-labor-law-reform-announced

[3] https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/saudi-arabia-saudization-changes-from-september-2017

[4] http://www.legislation.gov.uk/uksi/2017/172/contents/made

[5] https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/uk-equal-pay-day-puts-the-spotlight-on-gender-pay-gaps

[6] https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/brazil-new-labor-law-reforms

[7] Cf. PowerPoint presentation “Global Employment Trends and Development”; See also http://www.echr.coe.int/Documents/Press_Q_A_Barbulescu_ENG.PDF; See also https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/uk

[8] https://www.cooley.com/~/media/cooley/pdf/reprints/preparingforthegdpr.ashx?la=en

[9] https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/hong-kong-apology-legislation-to-be-introduced-in-2017

[10] https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/france-right-to-disconnect

[11] https://www.indianbarassociation.org/policy-initiatives/creche/

[12] https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/canada-workplace-harassment-in-ontario

Raising kids is part joy and part guerilla warfare.  – Ed Asner

There is one issue in which women often receive more favorable treatment than men: parental leave. Women (whether because of their employers’ leave policies or individual choices) receive an average of 41 days of parental leave while men receive an average of 22 days, according to a 2016 report.

Companies may attempt to make this sex neutral by designating greater leave for ”primary caregivers” and less leave for ”secondary caregivers.” Yet, such designations are fraught with administrative quandaries: e.g., fathers who assert “primary caregiver” status or couples who claim to be “co-primary” parents.

To such practical problems, now add the emerging legal problems evident in a pair of claims.

In the first case, the ACLU filed a discrimination charge with the EEOC on behalf of a male whose employer provided fathers only 2 weeks of paid leave while mothers received 16 weeks of paid leave. There, the charge asserts that the “primary caregiver” rule is a cover-up for sex discrimination enforcing “a sex-based stereotype that women are and should be caretakers of children.”

In the second case, the EEOC sued alleging another employer discriminated more overtly. There, only women were allowed to claim “primary caregiver” status (which granted 6 weeks of paid leave) and were also granted “transition-back-to-work” benefits that were unavailable to secondary caregivers (who only received 2 weeks of paid leave).

Such claims draw their legal theories from the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 2015). That guideline stakes out the EEOC’s thesis that parental leave, beyond that tied to any physical limitations imposed by pregnancy or childbirth, must be offered in equal amounts to both parents:

Leave related to … medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms.  If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

Does this mean that companies are required to offer an equal amount of baby-bonding leave to both parents? Perhaps a gender-neutral policy (e.g., where a company offers “primary” and “secondary” leave, and men and women are both able to claim “primary” caregiver status and thus receive the longer leave) could withstand disparate treatment legal challenge.

But, shouldn’t policies be designed to avoid litigation rather than to create interesting test questions? If so, parental leave (which is to say “bonding” leave as opposed to “medical” or “disability” leave) should – in a perfect world – be both sex neutral and role neutral.

It is, of course, the issue of cost that makes this an imperfect world.

Imagine Blackacre Ltd whose current policy utilizes the primary/secondary dichotomy and allocates six weeks paid leave for the former and two weeks for the latter. Equalizing upward adds cost (the potential of four weeks paid leave for every secondary caregiver whose family adds a child) while equalizing down adds a morale risk.

Solutions will be customized. In some cases, it may be possible to amend parental leave policies to address state statutes that are mandating partial-paid leave for baby-bonding, such as the California Paid Family Leave and New York State Paid Family Leave.  In others, it may be necessary to be creative (e.g., combinations of fully paid and partially paid leave).

It is also possible to gamble on such leave going unused. It is a documented phenomenon with vacation time, which is consistently being left on the table by employees for a variety of reasons.  See The Hidden Costs of Unused Leave (https://www.projecttimeoff.com/research/hidden-costs-unused-leave). To the extent that the 41 days for women vs 22 days for men in current practice reflects social choices, the cost of equalization may not be astronomical.

At home, social media dilemmas include being 62 weeks deep in a social media account, and accidentally dropping a dreaded double-tap, “liking” a photo and releasing a notification that reveals your not-so-secret surveillance. It gets worse. What if you were perusing the account of an ex’s new flame?

At work, social media can present even graver issues. As employers adjust to using social media, courts struggle to determine who owns work-related social media accounts: the employer or the former employee?

Employers now need to address ownership to avoid losing valuable social media assets.

To Own or Not To Own, That is the Question   

Employers rightly ask whether ’tis nobler in the mind to suffer the slings and arrows of marketing losses by not utilizing social media, or to take arms against a sea of potential risks. More and more employers are taking to social media as part of their marketing plan.

In doing so, employers should first weigh the inherent risks of having an employee use a personal social media account for business purposes. Typically, that is sub-optimal.  There are often state laws prohibiting employers from requesting or requiring: (1) employees’ social media usernames and passwords; (2) that employees access personal social media in front of the employer; or (3) that employees divulge personal social media information.

These laws are ample incentives to make sure that any social media accounts are clearly designated as corporate, as opposed to personal. While the line is often fuzzy, employers can avoid some social media pitfalls by staking out ownership and crafting social media policies that reinforce that claim.

Ownership Of ….

There are several components to social media ownership:

  • Account name
  • Account relationships (the “goodwill” that accounts build with other accounts, with brands, with advertisers, with influencers, and with their followers — often monetizable)
  • Account followers/connections
  • Account password
  • Account metrics
  • Right to access and control account content (each post is a fine balance of aesthetics and atmospherics centering around content, timing, and overall strategy with the upload and delete decision being key)

Each ownership component is potentially distinct, particularly when employees are asked to use social media to market and promote a business’s products or services. While employers may wonder whether a Twitter handle by any other name might still smell as sweet, seasoned social media users appreciate that every component is uniquely valuable.

For example, Eagle v. Morgan, No. CIV.A. 11-4303, 2012 WL 4739436 (E.D. Pa. 2012) addressed a dispute over the ownership of a LinkedIn account.  There, the former employer accessed the LinkedIn account, changed the password, and updated the account with information on the former employee’s successor.   The former employee won but failed to prove damages.

Another employer ended up in court when an employee left the company and took the Twitter account (and its 17000 followers). Although the parties settled, the employer’s claims of misappropriation of trade secrets, conversion, and intentional interference survived a motion to dismiss. PhoneDog v. Kravitz, No. C 11-03474 MEJ, 2012 WL 273323 (N.D. Cal. 2012)

Practice Pointers

To minimize ownership battles, there are steps to undertake.

The must list includes the following:

  • A signed written agreement spelling out that the employer owns the account, customer lists, friends, followers, content, username, passwords, and e-mail addresses;
  • A clause indicating that the account is for business, not personal use;
  • A clause agreeing to register the social media accounts in the company name;
  • A policy stating that whatever the employee creates on company time or with company resources belongs solely to the employer; and
  • A procedure outlining the return of login information upon extended absences or departures.

The “nice but not necessities” includes the following additional steps:

  • A prohibition on employees conducting company business over social media using personal accounts held in their own name;
  • A policy limiting the number of employees with administrative control over the account(s) and designating the specific employees that have permission to post on the account;
  • A clause highlighting that the account login information is confidential;
  • A guide setting out acceptable content;
  • A liquidated damages provisions establishing damages due to the difficulty of calculating damages in ownership litigation; and
  • A non-solicit clause setting limits on communications over social media with the former employer’s clients and employees for a period of time

When mixing and matching from the bullet points above, employers should be cognizant that policies that are too draconian may affect recruiting, particularly in industries where the employee has a personal brand that has its own value. Employers must strike a balance between protecting content and protecting culture in their workplace.

Despites the risks, the considerations, and the policy choices to be made, employers may doubt the stars are fire, doubt the sun doth move, doubt truth to be a liar, but should never doubt the power of social media. Nor the importance of planning its ownership in advance.